Senate Bill sb0294
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Florida Senate - 2003 SB 294
By Senator Crist
26-220-03
1 A bill to be entitled
2 An act relating to protective injunctions;
3 providing a short title; amending s. 784.046,
4 F.S.; defining the term "sexual violence";
5 providing for a cause of action for an
6 injunction for protection in cases of sexual
7 violence; providing for a petition to be filed
8 on the victim's own behalf or on behalf of a
9 minor child under certain circumstances;
10 requiring that the sexual violence be reported
11 to a law enforcement agency and that the person
12 filing the petition cooperate in any
13 investigation; providing for a petition to be
14 filed against a respondent who was sentenced to
15 imprisonment for the sexual violence and who
16 has been or will be released; prohibiting the
17 assessment of filing fees for a petition for
18 protection against repeat violence, sexual
19 violence, or dating violence; providing for the
20 Office of the State Courts Administrator to
21 reimburse the clerks of the court for filing
22 fees, subject to legislative appropriation;
23 providing requirements for a petition for
24 protection against sexual violence; specifying
25 the period of effect for an ex parte temporary
26 injunction against a respondent released from
27 incarceration; providing requirements for
28 serving an injunction; redesignating the
29 Domestic, Dating, and Repeat Violence
30 Injunction Statewide Verification System as the
31 Domestic, Dating, Sexual, and Repeat Violence
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1 Injunction Statewide Verification System;
2 requiring notice to the sheriff and law
3 enforcement agencies; providing an effective
4 date.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. This act may be cited as "The Victim's
9 Freedom Act."
10 Section 2. Section 784.046, Florida Statutes, is
11 amended to read:
12 784.046 Action by victim of repeat violence, sexual
13 violence, or dating violence for protective injunction; powers
14 and duties of court and clerk of court; filing and form of
15 petition; notice and hearing; temporary injunction; issuance;
16 statewide verification system; enforcement.--
17 (1) As used in this section, the term:
18 (a) "Violence" means any assault, aggravated assault,
19 battery, aggravated battery, sexual assault, sexual battery,
20 stalking, aggravated stalking, kidnapping, or false
21 imprisonment, or any criminal offense resulting in physical
22 injury or death, by a person against any other person.
23 (b) "Repeat violence" means two incidents of violence
24 or stalking committed by the respondent, one of which must
25 have been within 6 months of the filing of the petition, which
26 are directed against the petitioner or the petitioner's
27 immediate family member.
28 (c) "Sexual violence" means any one incident of:
29 1. Sexual battery, as defined in chapter 794;
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1 2. A lewd or lascivious act, as defined in chapter
2 800, committed upon or in the presence of a person younger
3 than 16 years of age;
4 3. Luring or enticing a child, as described in chapter
5 787;
6 4. Sexual performance by a child, as described in
7 chapter 827; or
8 5. Any other forcible felony wherein a sexual act is
9 committed or attempted,
10
11 regardless of whether criminal charges based on the incident
12 were filed, reduced, or dismissed by the state attorney.
13 (d)(c) "Dating violence" means violence between
14 individuals who have or have had a continuing and significant
15 relationship of a romantic or intimate nature. The existence
16 of such a relationship shall be determined based on the
17 consideration of the following factors:
18 1. A dating relationship must have existed within the
19 past 6 months;
20 2. The nature of the relationship must have been
21 characterized by the expectation of affection or sexual
22 involvement between the parties; and
23 3. The frequency and type of interaction between the
24 persons involved in the relationship must have included that
25 the persons have been involved over time and on a continuous
26 basis during the course of the relationship.
27
28 The term does not include violence in a casual
29 acquaintanceship or violence between individuals who only have
30 engaged in ordinary fraternization in a business or social
31 context.
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Florida Senate - 2003 SB 294
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1 (2) There is created a cause of action for an
2 injunction for protection in cases of repeat violence, and
3 there is created a separate cause of action for an injunction
4 for protection in cases of dating violence, and there is
5 created a separate cause of action for an injunction for
6 protection in cases of sexual violence.
7 (a) Any person who is the victim of repeat violence or
8 the parent or legal guardian of any minor child who is living
9 at home and who seeks an injunction for protection against
10 repeat violence on behalf of the minor child has standing in
11 the circuit court to file a sworn petition for an injunction
12 for protection against repeat violence.
13 (b) Any person who is the victim of dating violence
14 and has reasonable cause to believe he or she is in imminent
15 danger of becoming the victim of another act of dating
16 violence, or any person who has reasonable cause to believe he
17 or she is in imminent danger of becoming the victim of an act
18 of dating violence, or the parent or legal guardian of any
19 minor child who is living at home and who seeks an injunction
20 for protection against dating violence on behalf of that minor
21 child, has standing in the circuit court to file a sworn
22 petition for an injunction for protection against dating
23 violence.
24 (c) A person who is the victim of sexual violence or
25 the parent or legal guardian of a minor child who is living at
26 home who is the victim of sexual violence has standing in the
27 circuit court to file a sworn petition for an injunction for
28 protection against sexual violence on his or her own behalf or
29 on behalf of the minor child if:
30 1. The person has reported the sexual violence to a
31 law enforcement agency and is cooperating in any criminal
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1 proceeding against the respondent, regardless of whether
2 criminal charges based on the sexual violence have been filed,
3 reduced, or dismissed by the state attorney; or
4 2. The respondent who committed the sexual violence
5 against the victim or minor child was sentenced to a term of
6 imprisonment in state prison for the sexual violence and the
7 respondent's term of imprisonment has expired or is due to
8 expire within 90 days following the date the petition is
9 filed.
10 (d)(c) A This cause of action for an injunction may be
11 sought whether or not any other petition, complaint, or cause
12 of action is currently available or pending between the
13 parties.
14 (e)(d) A This cause of action for an injunction does
15 shall not require that the petitioner be represented by an
16 attorney.
17 (3)(a) The clerk of the court shall provide a copy of
18 this section, simplified forms, and clerical assistance for
19 the preparation and filing of such a petition by any person
20 who is not represented by counsel.
21 (b) Notwithstanding any other law, the clerk of the
22 court may not assess a fee for filing a petition for
23 protection against repeat violence, sexual violence, or dating
24 violence. However, subject to legislative appropriation, the
25 clerk of the court may, each quarter, submit to the Office of
26 the State Courts Administrator a certified request for
27 reimbursement for petitions for protection issued by the court
28 under this section at the rate of $40 per petition. The
29 request for reimbursement shall be submitted in the form and
30 manner prescribed by the Office of the State Courts
31 Administrator. From this reimbursement, the clerk shall pay
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1 the law enforcement agency serving the injunction the fee
2 requested by the law enforcement agency; however, this fee may
3 not exceed $20. In the event the person desiring to file for
4 an injunction pursuant to this section does not have
5 sufficient funds with which to pay filing fees to the clerk of
6 the court or service fees to the sheriff or law enforcement
7 agency and signs an affidavit so stating, the fees shall be
8 waived by the clerk of the court or the sheriff or law
9 enforcement agency to the extent necessary to process the
10 petition and serve the injunction, subject to a subsequent
11 order of the court relative to the payment of such fees.
12 (c) No bond shall be required by the court for the
13 entry of an injunction.
14 (d) The clerk of the court shall provide the
15 petitioner with a certified copy of any injunction for
16 protection against repeat violence, sexual violence, or dating
17 violence entered by the court.
18 (4)(a) The sworn petition shall allege the incidents
19 of repeat violence, sexual violence, or dating violence and
20 shall include the specific facts and circumstances that which
21 form the basis upon which relief is sought. With respect to a
22 minor child who is living at home, the parent or legal
23 guardian of the minor child must have been an eyewitness to,
24 or have direct physical evidence or affidavits from
25 eyewitnesses of, the specific facts and circumstances which
26 form the basis upon which relief is sought.
27 (b) The sworn petition must shall be in substantially
28 the following form:
29
30 PETITION FOR INJUNCTION FOR PROTECTION
31 AGAINST REPEAT VIOLENCE, SEXUAL VIOLENCE, OR DATING VIOLENCE
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1
2 Before me, the undersigned authority, personally
3 appeared Petitioner ...(Name)..., who has been sworn and says
4 that the following statements are true:
5
6 1. Petitioner resides at ...(address)...
7 2. Respondent resides at ...(address)...
8 3.a. Petitioner has suffered repeat violence as
9 demonstrated by the fact that the respondent has:
10 ...(enumerate incidents of violence)...
11
12 ............................
13 ............................
14 ............................
15
16 b. Petitioner has suffered sexual violence as
17 demonstrated by the fact that the respondent has: (enumerate
18 incident of violence and attach incident report by law
19 enforcement agency or notice of inmate release.)
20
21 ............................
22 ............................
23 ............................
24
25 c.b. Petitioner is a victim of dating violence and has
26 reasonable cause to believe that he or she is in imminent
27 danger of becoming the victim of another act of dating
28 violence or has reasonable cause to believe that he or she is
29 in imminent danger of becoming a victim of dating violence, as
30 demonstrated by the fact that the respondent has: ...(list the
31 specific incident or incidents of violence and describe the
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1 length of time of the relationship, whether it has been in
2 existence during the last 6 months, the nature of the
3 relationship of a romantic or intimate nature, the frequency
4 and type of interaction, and any other facts that characterize
5 the relationship.)...
6
7 ............................
8 ............................
9 ............................
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11 4. Petitioner genuinely fears repeat violence by the
12 respondent.
13 5. Petitioner seeks: an immediate injunction against
14 the respondent, enjoining him or her from committing any
15 further acts of violence; an injunction enjoining the
16 respondent from committing any further acts of violence; and
17 an injunction providing any terms the court deems necessary
18 for the protection of the petitioner and the petitioner's
19 immediate family, including any injunctions or directives to
20 law enforcement agencies.
21
22 (5) Upon the filing of the petition, the court shall
23 set a hearing to be held at the earliest possible time. The
24 respondent shall be personally served with a copy of the
25 petition, notice of hearing, and temporary injunction, if any,
26 prior to the hearing.
27 (6)(a) When it appears to the court that an immediate
28 and present danger of violence exists, the court may grant a
29 temporary injunction which may be granted in an ex parte
30 hearing, pending a full hearing, and may grant such relief as
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1 the court deems proper, including an injunction enjoining the
2 respondent from committing any acts of violence.
3 (b) In a hearing ex parte for the purpose of obtaining
4 such temporary injunction, no evidence other than the verified
5 pleading or affidavit shall be used as evidence, unless the
6 respondent appears at the hearing or has received reasonable
7 notice of the hearing.
8 (c) Any such ex parte temporary injunction shall be
9 effective for a fixed period not to exceed 15 days. However,
10 an ex parte temporary injunction granted under subparagraph
11 (2)(c)2. is effective for 15 days following the date the
12 respondent is released from incarceration. A full hearing, as
13 provided by this section, shall be set for a date no later
14 than the date when the temporary injunction ceases to be
15 effective. The court may grant a continuance of the ex parte
16 injunction and the full hearing before or during a hearing,
17 for good cause shown by any party.
18 (7) Upon notice and hearing, the court may grant such
19 relief as the court deems proper, including an injunction:
20 (a) Enjoining the respondent from committing any acts
21 of violence.
22 (b) Ordering such other relief as the court deems
23 necessary for the protection of the petitioner, including
24 injunctions or directives to law enforcement agencies, as
25 provided in this section.
26 (c) The terms of the injunction shall remain in full
27 force and effect until modified or dissolved. Either party may
28 move at any time to modify or dissolve the injunction. Such
29 relief may be granted in addition to other civil or criminal
30 remedies.
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1 (d) A temporary or final judgment on injunction for
2 protection against repeat violence, sexual violence, or dating
3 violence entered pursuant to this section shall, on its face,
4 indicate that:
5 1. The injunction is valid and enforceable in all
6 counties of the State of Florida.
7 2. Law enforcement officers may use their arrest
8 powers pursuant to s. 901.15(6) to enforce the terms of the
9 injunction.
10 3. The court had jurisdiction over the parties and
11 matter under the laws of Florida and that reasonable notice
12 and opportunity to be heard was given to the person against
13 whom the order is sought sufficient to protect that person's
14 right to due process.
15 4. The date that the respondent was served with the
16 temporary or final order, if obtainable.
17 (8)(a)1. The clerk of the court shall furnish a copy
18 of the petition, notice of hearing, and temporary injunction,
19 if any, to the sheriff or a law enforcement agency of the
20 county where the respondent resides or can be found, who shall
21 serve it upon the respondent as soon thereafter as possible on
22 any day of the week and at any time of the day or night. The
23 clerk of the court shall be responsible for furnishing to the
24 sheriff such information on the respondent's physical
25 description and location as is required by the department to
26 comply with the verification procedures set forth in this
27 section. Notwithstanding any other provision of law to the
28 contrary, the chief judge of each circuit, in consultation
29 with the appropriate sheriff, may authorize a law enforcement
30 agency within the chief judge's jurisdiction to effect this
31 type of service and to receive a portion of the service fee.
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1 No person shall be authorized or permitted to serve or execute
2 an injunction issued under this section unless the person is a
3 law enforcement officer as defined in chapter 943.
4 2. If the respondent is in the custody of the
5 Department of Corrections and the petition for an injunction
6 has been filed as provided in subparagraph (2)(c)2., the clerk
7 of the court shall furnish a copy of the petition, notice of
8 hearing, and temporary injunction, if any, to the Department
9 of Corrections and copies shall be served upon the respondent
10 as soon thereafter as possible on any day of the week and at
11 any time of the day or night. The petition, notice of hearing,
12 or temporary injunction may be served in a state prison by a
13 correctional officer as defined in chapter 943. If the
14 respondent in custody is not served before his or her release,
15 a copy of the petition, notice of hearing, and temporary
16 injunction, if any, shall be forwarded to the sheriff of the
17 county specified in the respondent's release plan for service
18 as provided in subparagraph 1.
19 3.2. When an injunction is issued, if the petitioner
20 requests the assistance of a law enforcement agency, the court
21 may order that an officer from the appropriate law enforcement
22 agency accompany the petitioner and assist in the execution or
23 service of the injunction. A law enforcement officer shall
24 accept a copy of an injunction for protection against repeat
25 violence, sexual violence, or dating violence, certified by
26 the clerk of the court, from the petitioner and immediately
27 serve it upon a respondent who has been located but not yet
28 served.
29 (b) There shall be created a Domestic, Dating, Sexual,
30 and Repeat Violence Injunction Statewide Verification System
31 within the Department of Law Enforcement. The department shall
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1 establish, implement, and maintain a statewide communication
2 system capable of electronically transmitting information to
3 and between criminal justice agencies relating to domestic
4 violence injunctions, dating violence injunctions, sexual
5 violence injunctions, and repeat violence injunctions issued
6 by the courts throughout the state. Such information must
7 include, but is not limited to, information as to the
8 existence and status of any injunction for verification
9 purposes.
10 (c)1. Within 24 hours after the court issues an
11 injunction for protection against repeat violence, sexual
12 violence, or dating violence or changes or vacates an
13 injunction for protection against repeat violence, sexual
14 violence, or dating violence, the clerk of the court must
15 forward a copy of the injunction to the sheriff with
16 jurisdiction over the residence of the petitioner.
17 2. Within 24 hours after service of process of an
18 injunction for protection against repeat violence, sexual
19 violence, or dating violence upon a respondent, the law
20 enforcement officer must forward the written proof of service
21 of process to the sheriff with jurisdiction over the residence
22 of the petitioner.
23 3. Within 24 hours after the sheriff receives a
24 certified copy of the injunction for protection against repeat
25 violence, sexual violence, or dating violence, the sheriff
26 must make information relating to the injunction available to
27 other law enforcement agencies by electronically transmitting
28 such information to the department.
29 4. Within 24 hours after the sheriff or other law
30 enforcement officer has made service upon the respondent and
31 the sheriff has been so notified, the sheriff must make
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1 information relating to the service available to other law
2 enforcement agencies by electronically transmitting such
3 information to the department.
4 5. Within 24 hours after an injunction for protection
5 against repeat violence, sexual violence, or dating violence
6 is lifted, terminated, or otherwise rendered no longer
7 effective by ruling of the court, the clerk of the court must
8 notify the sheriff or local law enforcement agency receiving
9 original notification of the injunction as provided in
10 subparagraph 2. That agency shall, within 24 hours after
11 receiving such notification from the clerk of the court,
12 notify the department of such action of the court.
13 (9)(a) The court shall enforce, through a civil or
14 criminal contempt proceeding, a violation of an injunction for
15 protection. The court may enforce the respondent's compliance
16 with the injunction by imposing a monetary assessment. The
17 clerk of the court shall collect and receive such assessments.
18 On a monthly basis, the clerk shall transfer the moneys
19 collected pursuant to this paragraph to the State Treasury for
20 deposit in the Crimes Compensation Trust Fund established in
21 s. 960.21.
22 (b) If the respondent is arrested by a law enforcement
23 officer under s. 901.15(10) for committing an act of repeat
24 violence, sexual violence, or dating violence in violation of
25 an a repeat or dating violence injunction for protection, the
26 respondent shall be held in custody until brought before the
27 court as expeditiously as possible for the purpose of
28 enforcing the injunction and for admittance to bail in
29 accordance with chapter 903 and the applicable rules of
30 criminal procedure, pending a hearing.
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1 (10) The petitioner or the respondent may move the
2 court to modify or dissolve an injunction at any time.
3 (11) A law enforcement officer acting in good faith
4 under this section and the officer's employing agency shall be
5 immune from all liability, civil or criminal, that might
6 otherwise be incurred or imposed by reason of the officer's or
7 agency's actions in carrying out the provisions of this
8 section.
9 Section 3. This act shall take effect July 1, 2003.
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12 SENATE SUMMARY
13 Creates "The Victim's Freedom Act." Provides a cause of
action for injunctions for protection against sexual
14 violence. Requires that the sexual violence be reported
to a law enforcement agency and that the person filing
15 the petition cooperate in an investigation. Provides for
filing a petition against a respondent who has been or
16 will be released following incarceration for committing
sexual violence. Prohibits the court clerk from assessing
17 filing fees for a petition for protection against repeat
violence, sexual violence, or dating violence. Renames
18 the Domestic, Dating, and Repeat Violence Injunction
Statewide Verification System as the Domestic, Dating,
19 Sexual, and Repeat Violence Injunction Statewide
Verification System. (See bill for details.)
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